ATLANTA — A prominent law firm hired by Republican lawmakers to defend the federal ban on gay marriage said Monday it was withdrawing from the case amid criticism by advocacy groups, prompting the partner leading the work to quit.
The move by Atlanta-based King & Spalding is the latest flash point in the public debate over gay rights. Chairman Robert Hays Jr. said the firm chose to divorce itself from the controversy after determining that the decision to take the case wasn’t vetted properly, but gay rights groups also had been pressuring the 800-lawyer company with plans for a protest Tuesday in Atlanta and with calls to its other clients. The groups cheered the move.
The decision, however, was sharply criticized by conservative groups, legal observers and the partner who had been handling the case, a former high-ranking Justice Department official under President George W. Bush. Washington-based attorney Paul Clement said he’s moving to another law office so he can continue the work.
Clement had been retained by House Republican leaders after President Barack Obama ordered the Justice Department in February to stop defending the Defense of Marriage Act. His administration said it believes the 1996 law, which defines marriage as only between a man and a woman, was unconstitutional.
Weeks later, House Speaker John Boehner said his chamber would take responsibility for defending the law, which has been challenged several times in federal courts in recent years. A House committee voted in March to fund the defense, and officials announced last week that they were retaining Clement at $520 an hour.
That’s when gay rights groups took action. The Human Rights Campaign criticized the firm for “defending the indefensible,” and advocates mobilized gay student groups at law schools to vent about the decision. Some groups actively contacted King & Spalding’s clients about the decision, and dozens of people were planning a rally near the firm’s Atlanta headquarters on Tuesday.
Shortly after the firm announced its decision, Clement responded in a blunt letter that a law firm shouldn’t abandon a client in the face of criticism. The former U.S. solicitor general said while his personal views are irrelevant, “defending unpopular positions is what lawyers do.”
Clement said he will keep working on the case for House leaders at the firm Bancroft PLLC. Boehner’s spokesman said the move to Bancroft, known for taking on conservative causes, will “ensure the constitutionality of this law is appropriately determined by the courts, rather than by the President unilaterally.”
King & Spalding’s spokesman would not elaborate on the decision, and several of its attorneys declined to comment. But an expert on legal ethics said it appears the firm was being pressured by law students it hopes to recruit and other clients it hopes to retain.
“You don’t get bullied out of a case because the public opposes the work,” said Stephen Gillers, New York University School of Law professor. “The U.S. isn’t going to have any trouble finding lawyers, but if we allow bullying to occur it’s going to be the weakest and most despised that will be unable to find counsel.”
Conservative groups also panned King & Spalding. Family Research Council President Tony Perkins said he was shocked that the firm “would rather lose their most brilliant and talented Supreme Court lawyer than confront a smear campaign” by gay rights groups. Penny Nance of Concerned Women for America likened the decision to “caving to extremists under pressure.”
The advocacy groups that had protested King & Spalding, meanwhile, were praising the firm on Monday after its decision. Those groups said they had been stung that the firm, known for supporting gay rights and recruiting gay employees, was involved in defending the ban.
“Many of us were stunned, shocked and angered when it became known that King & Spalding had taken on this case, and we are gratefully relieved to find out they had withdrawn,” said Jeff Graham, the executive director of the gay rights group Georgia Equality. “The legal case is something that is really a thinly veiled political attack on gay and lesbian couples and families.”
Jon Davidson, the legal director of the gay-rights group Lambda Legal, said “we welcome the firm back to the right side of history.”
But Clement said efforts to make one side of a legal controversy seem less legitimate are a “profound threat to the rule of law.”
“Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients,” said Clement, who is based in Washington. “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”
Former U.S. Attorney General Michael Mukasey, who also served under Bush, called King & Spalding’s decision “sad and cowardly.”
“When it comes to legal representation, once you put your card down, you’ve played it and you stick with it,” said Mukasey, who now works at Debevoise & Plimpton, a Washington firm.
“It sends a terrible message. What it says is that you can keep your finger up in the wind even after you undertake a legal representation. And when political correctness trumps professional responsibility, it’s a very sad day for law practice.”